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Police, Public Order and Criminal Justice (Scotland) Bill: Stage 1
This is the 34th meeting in 2005 of the Subordinate Legislation Committee. Sylvia Jackson and Stewart Maxwell are not here this morning; they are—would you believe—on committee business in London.
I raised this point at the previous meeting. Although the Executive's explanation makes sense, I think that we should draw it to the lead committee's attention. After all, it is as much a policy matter as it is anything else.
We will draw the issue to the lead committee's attention.
The issue has raised much controversy. Either today or yesterday, we received correspondence from the local authority body that supervises the police, expressing great concern about a number of aspects of the bill. Of course, it will be up to the lead committee to consider those concerns as policy issues. However, we have made a case for the use of statutory instruments to deal with the matter.
I should mention that we will not be able to send anything back to the Executive again, because Ruth Cooper has to get the report turned round today.
Could I ask our legal adviser whether what the Executive proposes would set a precedent? Paragraph 6 of our legal briefing says that a similar situation arose with the Standards in Scotland's Schools etc Act 2000 but that, eventually, the situation was resolved through the introduction of an affirmative resolution procedure. Is what we have a precedent?
Tell us, Margaret.
I suppose so. How you treat the matter is a policy decision for you to make. The situation with the Standards in Scotland's School etc Act 2000 was similar.
We should bring that to the attention of the lead committee as well.
All right.
Presumably, if any of us wished to take action, the form of redress would be to lodge an amendment. I do not know whether it would be appropriate to look to the convener of the committee to do that on our behalf. I do not sense that there is committee agreement on the matter, but the option of lodging an amendment is open to an individual member to pursue if they wish.
I am conscious that the convener and Stewart Maxwell are not here. Therefore, I would be loth to bind the convener to lodge a committee amendment.
Section 23(1) provides for the power to require the use of police support services. The Executive says that the use of the negative procedure together with—and I emphasise this—the consultation requirements provide enough scrutiny for the power. Are members content?
Section 32(3) provides for the power to prescribe exceptions from notifying the complainer of the outcome and action to be taken following a complaint-handling review. The committee asked for further explanation of how the power might be exercised. The Executive has detailed the rationale for the provision and the circumstances that might be covered. It says that the provision provides flexibility to modify circumstances and that it is better to have that in regulations than in the bill. Are members content?
Section 65(2) provides for the power to modify the definition of the enforcing authority. The committee was concerned that the drafting of the power might not achieve the policy intention and asked the Executive for further explanation. The Executive is satisfied that the provisions as drafted would allow Scottish ministers to provide that a different body was to be the enforcing authority but is considering whether it is necessary to lodge an amendment at stage 2. How do we want to report on that?
I think that we have skipped two, deputy convener.
Did I miss one?
Are you going on to section 65(2)?
Yes.
I am still reading about sections 33 and 36(3). That may be my fault.
I am sorry; I will go back to them.
Bring back Sylvia Jackson.
You will get no argument from me on that. Having been rebuked—
Assisted good-naturedly.
I return to my question about the enforcing authority. Do we just have to point out to the lead committee that the Executive is considering lodging an amendment?
Section 33 provides for the power to make regulations on the discontinuation of complaint-handling reviews. Again, the committee asked for an explanation of how the power might be used. Are members content with the Executive's explanation?
I suspect that section 36(3) is much the same. It provides for the power to prescribe exceptions from the requirement to notify the complainer about the outcome, the findings and the action to be taken following the reconsideration of a complaint. Again, the committee has received an explanation from the Executive.
I dare say that, if we did that more often, we might have more hits with the Executive.
In my memory, this is the first time that we have suggested reducing the procedure.
Before we leave this item, deputy convener, may I jump back—you have established a precedent that we can jump backwards and forwards in these matters—to section 4? I suggest that we might wish to raise the analogy with the Standards in Scotland's Schools etc Act 2000. In that case, the Executive eventually agreed to make a change to include an affirmative statutory instrument. We should raise the same issue in this case and press the Executive a little further on the matter.
We will have to press it through the lead committee.
Yes, but this is only stage 1, so the matter will come back. We will observe the formality—you are quite correct to say that it is a matter for the lead committee—but there is no need to rush to judgment. We have time to explore the matter a little further.
All that I meant was that we can get an answer back first.
I understand that.
Scottish Schools (Parental Involvement) Bill: Stage 1
We move on to consider the Scottish Schools (Parental Involvement) Bill at stage 1. Through the bill, the Executive seeks to implement its commitment to review and reform the legislation that governs school boards. The bill contains four powers to make subordinate legislation, all of which are detailed in the Executive's memorandum on delegated powers.
Also, do members agree that we should ask the Executive whether there should be a formal requirement to consult parent councils before an order is made to alter their statutory functions? I think that we should include that in our questions to the Executive.
Sections 14(3)(a) and 14(3)(b) deal with procedures for the appointment of a head teacher or deputy and participation in a parent council. Section 14(1) of the bill obliges education authorities to inform Scottish ministers and any parent council of the appointment process established by the authority for filling those posts. Section 14(3)(a) confers on ministers a power to make regulations to impose requirements that an appointment process must satisfy and section 14(3)(b) confers a power on ministers to give notice to an education authority to make such changes to its appointment process as the notice specifies. That all seems fine. Are we content with the procedures?
Section 19 provides for a general power to issue guidance. The power is not contained in the delegated powers memorandum as it does not confer power to make subordinate legislation, but it is a wide delegated power and is therefore our business. Section 19(1) confers a power on ministers to issue guidance to education authorities, parent councils and combined parent councils in respect of their functions. Do we have any views about whether the power should be subject to parliamentary procedure?
We pursued the subject during our evidence taking in our inquiry. The feedback that we received from the subject committee conveners was that they did not expect to see codes of practice or guidance forming statutory instruments on a regular basis. However, the committee has had occasion in the past to suggest some sort of procedure for codes of practice and guidance. The Gaelic Language (Scotland) Bill is an example of when we tried to ensure that a code was laid before the Parliament for some sort of scrutiny. On the basis of that precedent, we should ask for the same here.
I tend to agree, but it is a question of balance. Some matters are so routine that we do not want to burden the Parliament with them. However, we are talking about guidance not for local authorities but for groups of parents. We should take some action, even if we just ask that the guidance be laid before the Parliament. We should say to the Executive that we would like some parliamentary scrutiny through whichever procedure is thought best. Currently, there is not even an obligation to publish the guidance, but we need some knowledge of what is happening.
The lead committee asked how the Executive intended to draw the guidance to the attention of the Parliament, what role it saw for the Parliament and whether it intended to publish the guidance. We could add our weight to that committee's request for information.
It is likely that the people who will be affected by the legislation in practice—individual parents and parents groups—will find it surprising that there has not been any procedure in the event that the guidance ever appears to them to be challenging. The deputy convener is correct that we are not talking about health boards, local authorities or people who deal routinely with that kind of administration. We are in a more sensitive area when we deal with members of the public.
We will write back to the Executive to say that there should be some form of parliamentary scrutiny, either by statutory instrument or, at the very least, by laying the guidance before the Parliament. We will also ask for the Executive's comments.
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Executive Responses